Fynn And Another v. The Republic [1971] 2 GLR 433-459

Material Facts:

The applicants were convicted on charges of stealing by the Circuit Court. The first applicant was sentenced to twelve months imprisonment, and the second applicant was sentenced to two years imprisonment. After the sentence, they appealed against their conviction and are, in the present case, applying for bail pending the hearing of the appeal. From their affidavits in support of the application, the grounds for the application for bail pending appeal are that:

i. The judgment is prima facie erroneous in law, and so it would cause a grave miscarriage of justice to refuse bail and cause the sentence under such a judgment to be served.

ii. That the hearing of the appeal will inevitably delay, and the delay will be unreasonable because the first applicant would have served the whole of his sentence and the second applicant would have served a substantial part of his sentence by the time the appeal is determined.

Issue:

Whether or not there are grounds for granting the applicants a bail pending appeal.

Holding:

There is sufficient reason to believe that at the time of the determination of the appeal, the first and second applicants would have either respectively served the whole and substantial portion of the sentence.

Ratio Decidendi:

The courts have always maintained that the grant of bail pending appeal is unusual. Per Taylor J., bail pending appeal:

Involves the proposition that a person who has been found guilty and convicted by a court of competent jurisdiction and whose sentence of imprisonment has not been set aside must nevertheless be let loose on the community instead of his staying in prison to serve a sentence which is prima facie deserved. The matter becomes even more serious where the conviction is not by a grade II district court, manned as such courts are by lay magistrates, but by a judge at the circuit court.

While there has been uncertainty on the grounds upon which the court will grant bail pending appeal, the authorities reveal the following four grounds:

(1) [Exceptional or Unusual Grounds] If there are exceptional or unusual grounds for the application: see R. v. Gordon (supra); R. v. Gott (supra); R. v. Fitzgerald (Duke of Leinster) (supra); R. v. Klein (supra); R. v. Howeson & Hardy (supra); R. v. Starkie (supra) and R. v. Davidson (supra);

(2) [Likelihood of Appeal Succeeding] If there is a likelihood of the appeal succeeding: see R. v. Wise (supra); R. v. Smith (1919) 14 Cr.App.R. 74, C.C.A.; R. v. Waxman (1930) 22 Cr.App.R. 81, C.C.A.; R. v. Charavanmuttu (1929) 21 Cr.App.R. 184, C.C.A.;

(3) [Conferring with Counsel] If it is a case of such a nature where it would be of assistance for the preparing of a real case for appeal that the appellant should be free to confer with his counsel and prepare his appeal: see R. v. Wise (supra); R. v. Waxman (supra); R. v. Starkie (supra) and R. v. Charavanmuttu (supra); and [p.456]

(4) [Delays and Serving Jail Term] If having regard to the sentence there is going to be a considerable delay either in preparing the record of appeal or because of the long vacation and in consequence the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving the whole or substantial portion of his sentence: see R. v. Waxman (supra); R.v. Charavanmuttu (supra); R. v. Tarran (supra) and R. v. Cullis & Nash (supra).

What amounts to exceptional or unusual grounds has remained undefined, and per Taylor J., this gives the courts elbow room to shift in appropriate cases.

In the present case, the applicants have advanced two grounds for their application. The first is that the appeal is likely to succeed. The court is not able to assess the likelihood of success because it does not have the record of appeal nor the judgement of the Circuit Court. This ground, therefore, cannot be relied upon.

The second ground for the application is that the applicants would have either served all or a substantial part of their sentences by the time of the appeal. At the trial, the proceedings took about two and a half years, with evidence taken from 27 persons. When the court asked for the record of proceedings, it had taken over a month to type just the judgement. The court is of the view that if this is what has happened, the record of proceedings will take more than twelve months to prepare, by which time the first applicant would have served the whole sentence while the second applicant will have served a substantial portion of his sentence before the record is available. In light of this, the applicants fall under the fourth ground above and are hereby granted bail.

Principles in Case:

Four conditions upon which the court may grant bail pending appeal.